LARRY A. TURNER, APPELLANT,
v.
CITY OF DAYTONA BEACH SHORES, ET AL., APPELLEES
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Larry Turner appealed a summary judgment from the trial court, but the Florida District Court of Appeal dismissed the appeal for lack of jurisdiction because his notice of appeal was filed 40 days after the final judgment, exceeding the 30-day requirement. The court rejected Turner's argument that an earlier conditional notice of appeal filed five months before the final judgment could relate back to preserve his appeal rights.
The appeal is dismissed for lack of jurisdiction. The August 30, 1996 document does not constitute a valid notice of appeal because it was filed before any appealable decision existed, was contingent on future rulings, and did not comply with the formal requirements of Florida Rules of Appellate Procedure 9.110(d) and 9.900(a). Rule 9.110(m) does not apply to retroactively validate a belated notice of appeal filed five months after the final judgment.
[1] A notice of appeal must be filed within the time prescribed by rule to vest jurisdiction in the appellate court.
[2] A notice of appeal filed before the rendition of an appealable order is premature and subject to dismissal.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We dismiss the appeal for lack of jurisdiction because the notice of appeal was not filed until May 19, 1997, a date outside the 30-day requirement of Florida Rule of Appellate Procedure 9.110(b).”
Establishes the jurisdictional basis for dismissal—the fatal procedural defect of untimely filing.
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Join FLexlaw to unlock all legal intelligenceThe trial court rendered a final summary judgment on April 9, 1997. Turner filed a notice of appeal on May 19, 1997, which was 40 days after the judgm…
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PER CURIAM.
Larry A. Turner, pro se, appeals “the entire proceedings” in the trial court, but primarily bases his appeal on a final summary judgment rendered April 9, 1997. We dismiss the appeal for lack of jurisdiction because the notice of appeal was not filed until May 19, 1997, a date outside the 30-day requirement of Florida Rule of Appellate Procedure 9.110(b).
We earlier denied a motion to dismiss filed before the record was received by this court because the appellant responded to the motion by alleging that he had filed an earlier notice of appeal in August, 1996. We accepted at face value the representations made by the appellant and denied the motion to dismiss relying on Florida Rule of Appellate Procedure 9.110(m)
. Our review of the subsequently received record indicates that we were incorrect in denying the earlier motion to dismiss.
The earlier “Notice of Appeal” that appellant refers to was filed on August 30,1996, in a motion appellant entitled, “Motion to Strike the Sham Pleadings by Defendants Objection to Plaintiffs Notice of Hearing and Defendant’s Entry of a Order for Final Summary Judgment In the Alternative, A Notice of Appeal.” The “notice” was contained in the last paragraph of the motion and stated, “The Plaintiff herein is providing a Notice of Appeal, if the Court issues an Order in favor of the contemptuous Attorney and the Defendants.” No other Notice of Appeal appears in the record except the one filed with the Circuit Court on May 19, 1997. Furthermore, nothing appears in the record before us that would indicate that any further action was taken before May 19, 1997, to proceed with the appellant’s plan to take an appeal if the court ruled adversely to his interests.
The notice does not even come close to complying with the requirements of Florida Rules of Appellate Procedure 9.110(d) and 9.900(a), and glaringly omits “the name of the court to which the appeal is taken.” Fla. R.App. P. 9.110(d). Rule 9.110(m) allows for some leeway for premature appeals but our interpretation of the rule requires some previous action by the trial court about which an appellant wishes to complain. In the instant case, the August 30, 1997 “Notice of Appeal” was filed before any appealable decisions were rendered by the trial court and five months before any of the defendants filed a motion leading to the final judgment from which the appellant tardily filed an appeal.
The appeal is dismissed.
DISMISSED.
DAUKSCH, PETERSON and THOMPSON, JJ., concur. . Florida Rule of Appellate Procedure 9.110(m) provides:
(m) Premature Appeals. If a notice of appeal is filed before rendition of a final order, the appeal shall he subject to dismissal as premature. However, if a final order is rendered before dismissal of the premature appeal, the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order. Before dismissal, the court in its discretion may permit the lower tribunal to render a final order.